148 Iowa 644 | Iowa | 1910
On October 13, 1909, under a resolution of consent therefor passed by the city council of Sioux City, defendant Kelly purchased and went into possession of a saloon business in said-city as successor to one O’Conner, who had previously been running a saloon under a like resolution of consent on premises owned by defendant Magoun. Defendant Kelly has continued in the business until the present time, and has conducted the business in accordance with the law. At least there is nothing in the evidence to indicate any failure on his part in this respect. But it is contended that he acquired no right to engage in the business for the reason that the council had no authority to grant him consent when it attempted to do so, inasmuch as that at that time the number of saloons being operated in the city by the consent of the council exceeded one for every one thousand of the population of said city, and therefore the granting of consent to maintain another saloon was in violation of the provisions of. chapter 142, Acts 33d General Assembly. It is contended for the defendants, however, that the authority which the council attempted to exercise was within the exception to the statute found in section 2 thereof, authorizing renewals of consent to persons to whom such consent may have been granted and to their assignees or grantees, unless the existing resolution of consent in favor of any such person shall have become “inoperative by reason
At the time of the actual transfer by O’Conner to defendant Kelly, no injunction had been granted against O’Conner for violation of the law in conducting such business, and no proceeding for an injunction was then pending against him; but it appears that in the preceding August a civil action for an injunction to restrain said O’Conner from continuing to carry on such business, on the ground that his business had been conducted in violation of the law, was instituted by one White as plaintiff, in which action it was also asked that defendant Magoun be enjoined from allowing his premises to be used for such purposes, and that this action was pending until October 12th, the day preceding the sale and transfer of the business to defendant Kelly, when such proceeding was at the request of counsel for plaintiff therein dismissed by the court without prejudice to said plaintiff’s future right of action for said cause.
The contention for appellant is that the consent granted by the city council to defendant Kelly was invalid and without authority for the reason, first, that O’Conner who transferred the business to him had violated the law as to the sale of intoxicating liquors; second, that there was a pending suit for an injunction against O’Conner, the dismissal of which by the court was void for failure to give to the county attorney notice of the motioq. for such
As to Collier, nothing which he did or omitted to do is chargeable by way of collusion to Kelly. Whatever may have been his fault, if any, in not notifying the county attorney of his motion, and explaining to the court the .purpose of the dismissal, it is plain that such fault would not be chargeable to Kelly, who was without notice thereof.
We reach the conclusion that, so far as it appears from the record, the consent granted to Kelly by the city council was valid, and that he had therefore been lawfully conducting the business of selling intoxicating liquors,
The decree of the trial court is therefore affirmed.